The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: _____________ 2 Filing Date: June 30, 2023 3

No. A

- 1

- CA

- 39549 4
NANCY HENRY, 5

Plaintiff

- Appellant, 6

v. 7 JULIE GAUMAN, Records 8 Custodian for the New Mexico 9 Livestock Board, 10

Defendant

- Appellee. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Joshua A. Allison, District Court Judge 13 Harrison & Hart, LLC 14 Daniel J. Gallegos 15 Nicholas T. Hart 16 Ramón Soto 17 Albuquerque, NM 18 for Appellant 19 Hatcher Law Group, P.A. 20 Scott P. Hatcher 21 Robert A. Corchine 22 Carl J. Waldhart 23 Santa Fe, NM 24 for Appellee 25OPINION 1

YOHALEM , Judge. 2

{1} This appeal is brought under New Mexico’s Inspection of Public Records Act 3 (IPRA), NMSA 1978, Sections 14

- 2

- 1 to

- 12 (1947, as amended through 20 23)

. 4

Plaintiff Nancy Henry appeals the district cour t’s order denying her petition to 5 compel the records custodian for the New Mexico Livestock Board (the Board) to 6 make available for inspection a n investigative report (the Whetham Report) 7 concerning the conduct of livestock inspector Kenneth Whetham , a Bo ard employee

. 8 Henry claims on appeal that the d istrict court erred in concluding that the Whetham 9

R eport in its entirety is exempt from disclosure under Section 14

- 2

- 1(C) of IPRA , 10 the exemption for “letters or memoranda that are matters of opinion in personnel 11
files

. ” We agree with the district court that the entire report is exempt from disclosure 12

and that , under the circumstances of this case, in camera review of the report by the 13
district court was un necessary. Concluding that IPRA was correctly applied and is 14
determinative of the result we reach , we do not consider Henry’s argument 15 concerning Rule 1.7.1.12(C) NMAC

. 16

BACKGROUND 17

{ 2 } In 2018, Henry filed a complaint with the Office of the State Auditor (OSA) 18 alleging that W h etham, who was employed by the Board as a livestock inspector (a 19 law enforcement position) , had engaged in timesheet fraud by billing the Board for 202 his time while working at a second job

. The OSA investigated Henry’s complaint 1 pursuant to the Audit Act, NMSA 1978, Sections 12

- 6

- 1 through

- 1 5 ( 1969, as 2 amended through 201 9 ) . The Audit Act authorizes the O S A to investigate the 3 financial affairs of state agencies. See § 12

- 6

- 3. The OSA, in written findings (the 4 OSA Report) , identified forty instances where auditors found that W h etham had 5
been pai d by the State while working at an unapproved second job. Inspection of the 6

OSA Report under IPRA is not at issue in this case: it i s undisputed that Henry had 7 access to this report. 8

{ 3 } The O S A sent a letter to the Board informing the Board of its findings. Upon 9 receipt of the OSA letter, t he Board retained an outside firm , Thompson & 10 Associates Investigative Services, Inc. , to interview Board employees , including 11 livestock inspector Whetham, and to investigate any violation by Whetham of the 12
State’s or the Board ’s rule s of conduct for employees

. The purpose of the 13 investigation was to determine whether the Board’s rules on the billing of time ha d 14
been violated, to investigate Whetham’s general job performance and compliance 15 with the Board’s rules of conduct, and to advise the Board on whether disciplinary 16
action should be taken

. A letter to Whetham from the Board at the start of the 17 investigation inform ed him that “ the interview and investigation may form the basis 18 of disciplinary action if it reveals that you have engaged in any behavior that is 193 inconsistent with your obligation to the agency and the State of New Mexico and/or 1 contrary to the agency’s b est interests.” 2

{ 4 } In 2019, after the investigation by Thompson & Associates had been 3 completed, Henry sent an IPRA request to the Board’s custodian of records, Julie 4

Gauman , asking , in relevant part, for a cop y of “ the Investigation Report [] pertaining 5

to

. . . Kenneth Whetham .” 6

{ 5 } The Board denied Henry’s request for inspection and copying of the Whetham 7 Report stating, in relevant part: “ We cannot permit inspection of the investigation 8 report for Kenneth Wheth am

. . . because it is confidential and exempted from 9

disclosure under [Section] 14

- 2

- 1(C) .” The response identified the report as “record s 10
and documentation containing matters of opinion and documents concerning 11 infractions and disciplinary actions,” placed in an officer’s personnel file. 12

{ 6 } Henry filed a complaint in district court seeking a writ of mandamus or a court 13
order compelling the Board to produce the Whetham Report

. Both parties filed 14
motions for summary judgment and responses

. Prior to the district court’s resolution 15

of the parties ’ cross
- motions for summary judgment, Henry served a third

- party 16 subpoena on Thompson & Associates seeking a copy of the Whetham Report

. Henry 17 also served discovery on the Board and included a request for production of the 18 Whetham Report , as well as for production of communications and notes compiled 194 during the Board’s investigation of Whetham. The Board moved to quash the 1 subpoena and the production request. 2

{ 7 } Following a hearing on the pending motions , the district court granted the 3
Board’s motion for summary judgment and denied Henry’s cross

- motion for 4 summary judgment

. The district court found that “ [t] he undisputed evidence shows 5 that the Whetham Report ‘concerns’ a potential disciplinary action against 6 Whetham, [an employee of the Board] , ” and concl uded, “ [t] hat evidence is sufficient 7 to shield the Whetham Report from disclosure” under IPRA S ection 14

- 2

- 1(C). 8

{ 8 } T he district court also granted the Board’s motion to quash Henry’s subpoena 9

and he r request for production of documents , finding that examination of the report 10 by either Henry’s counsel or by the district court in camera review was unnecessary 11
and “immaterial to this [c] ourt’s determination of whether the Whetham Report is 12 exempt from disclosure under

. . . IPRA.” This app eal followed. 13

DISCUSSION 14

I
. “Letters or Memoranda That Are Matters of Opinion in Personnel File s ” 15 Are Exempt From Inspection in Their Entirety Under IPRA Section 14

- 16 2

- 1 ( C) 17

{ 9 } Henry argues that the Board ’s custodian of records was required to divide the 18 Whetham Report into “factual matters concerning misconduct by a public officer 19 related to that officer’s role as a public servant ” and “ ‘ matters of opinion ’ 20

con stituting personnel information” relat ed to the officer ’s role as an employee. 215 Henry agree s that the “matters of opinion ” concerning discipline are exempt from 1
disclosure under IPRA Section 14

- 2

- 1(C) but claims that “factual matters” must be 2

disclosed. We do not agree. Henry’s argument is based on a common misreading of 3 both the IPRA statutory language and longstanding appellate precedent from our 4 Supreme Court and this Court construing this exemption. We explain. 5

{1 0 } Whether our Legislature intended the exemption in Section 14

- 2

- 1(C) to 6 require the custodian of records to separate a single document concerning the 7 discipline of an employee into “matters of fact” and “matters of opinion” raises a 8 question of statutory interpreta tion, which we review de novo. See Dunn v. N.M. 9 Dep’t of Game & Fish , 2020

- NMCA

- 026, ¶ 3, 464 P.3d 129 (noting that this Court 10 reviews de novo disputes that require us to “construe the statute and apply the 11 relevant case law to undisputed facts”)

. The primary goal in interpreting a statute is 12

to give effect to the Legislature’ s intent. Id. ¶ 8. We begin the search for legislative 13 intent by looking “first to the words chosen by the Legislature and the p lain meaning 14 of the Legislature’ s language.” State v . Davis , 2003

- NMSC

- 022, ¶ 6, 134 N.M. 172, 15

74 P.3d 1064 (internal quotation marks and citation omitted). “ The application of 16 the plain meaning rule does not, however, end with a formalistic and mechanistic 17 interpretation of statutory language. ” Id. When the statutory language is “doubtful, 18 ambiguous, or an adherence to the literal use of the words would lead to injustice, 19 absurdity or contradiction , ” we construe the statute “according to its obvious spirit 206 or reason.” State v. Tafoya , 2010

- NMSC

- 019, ¶ 10, 148 N.M. 391, 237 P.3d 693 1 (internal quotat ion marks and citation omitted). W hen there is precedent construing 2 statutory language to guide us, we rely on that precedent. See D.W. v. B.C. , 2022

- 3

NMCA

- 006, ¶ 18, 504 P.3d 559 ( noting that our statutory analysis is guided by prior 4 appellate opinions construing the same statute). 5

{1 1 } IPRA Section 14

- 2

- 1 (C) states as follows: 6 Every person has a right to inspect public records of this state except: 7

. . . . 8

C. letters or memoranda that are matters of opinion in personnel 9 file s or students’ cumulative files. 10

{1 2 } Henry claims her argument that “matters of opinion” must be separated from 11
“matters of fact” is rooted in the plain language of Section 14

- 2

- 1 (C). Henry’s 12 argument, however, is dependent on isolating the phrase “matters of opinion ” from 13 the language of the longer phrase in which it is contained. That longer phrase 14
identifies “letters or memoranda that are matters of opinion.” Section 14

- 2

- 1(C). Our 15 Supreme Court in State v. Vest , recently addressed the importance of looking to the 16 meaning of the full phrase used by the Legislature when construing statutory 17 language

. See 2021

- N MSC

- 020, ¶ 18, 488 P.3d 626 ( concluding that it was error to 18 focus on a single word in our aggravated fleeing statute and to ignore the meaning 19

of the phrase as a whole). As in Vest , the words identified by Henry do not stand 20
alone. Artificially singling out the words “matters of opinion” risks removing all 217 meaning from the larger phrase , rendering the additional words superfluous

. See id. 1 (“A statute must be construed so that no part of t he statute is rendered surplusage or 2 superfluous.” (internal quotation marks and citation omitted)). 3

{1 3 } Looking then to the language of the exemption as an inte grated whole, we 4
note that t he subject of the exemption is not “ opinion ” or even “matters of opinion ” ; 5 the subject of the exemption is “letters or memoranda .” See Section 14

- 2

- 1 (C). The 6 language that follows “letters or memoranda ” modifies the subject, describ ing the 7 type of letter s or memoranda that are exempt : those “that are matters of opinion in 8 personnel files

. ” Id. T he exemption does not state, as it easily could , that “matte rs of 9 opinion contained in a letter or memorandum” are exempt, nor does it say “ portions 10 of letters or memoranda that are matters of opinion” are exempt

. Thus, the plain 11 language of the section does not support Henry’s claim that the Legislature intended 12 to exempt only the portions of the documents at issue that “contain” opinions. 13

{ 1 4 } We turn next to o ur Supreme Court’s construction of the language of th is 14 exemption in State ex rel. Newsome v. Alarid , 1977

- NMSC

- 076, ¶ 12, 90 N.M. 790, 15

568 P.2d 1236 , superseded by statute as stated in Republican Party of N.M. v. N.M. 16

Tax’n & Revenue Dep’t , 2012

- NMSC

- 026, ¶ 10, 283 P.3d 853

. Consistent with the 17 plain language of the exemption, o ur Supreme Court in Newsome describes the 18 exemption as a pply ing to letters or memoranda in their entirety. Newsome holds that 19 the Legislature intended the “letters or memorand ums which are matters of opinion ” 208 in personnel files exemption to apply to “documents concerning disciplinary action 1 and promotions, ” characterizing these documents as a whole as “ opinion 2

information .” Id. ¶ 12. Our Supreme Court in Newsome further notes that the 3 Legislature recognized that th is opinion information “ might have no foundation in 4 fact but, if released for public view, could be s eriously damaging to an employee. ” 5
Id. 6

{1 5 } I n Cox v. New Mexico Department of Public Safety , 2010

- NMCA

- 096, ¶ ¶ 20, 7 21, 148 N.M. 934, 242 P.3d 501 , this Court consider ed the IPRA exemption for 8 “letters and memoranda that are matters of opinion in personnel files

. ” Relying on 9

Newsome , w e conclude d that our Legislature intended to exempt from disclosure 10
documents “regarding the employer/employee relationship, such as internal 11 evaluations; disciplinary reports or documentation; promotion, demotion, or 12 termination information; or performance assessments.” Id. ¶ 2 1

. T he purpose of the 13 exemption , according to Cox , is to protect the employer / employee relationship from 14 disclosure of any “letters or memoranda” that are “generated by an employer or 15 employee in support of the working relationship between them.” Id. ¶ 22 ; see Hall 16 v. City of Carlsbad , ___ - NMCA

- ___, ¶ 10, ___ P.3d ___ ( A

- 1

- CA

- 37402, Mar

. 31, 17 2023) ( noting , consistently with the holdings of Newsome and Cox , that “ [ w ] hen a 18 law enforcement officer’s employer performs an internal affairs investigation to 19 investigate violations of the officer’ s terms of employment for the purpose of 209 determining whether infractions occurred and whether disciplinary action should be 1 taken, documents and reports prepared in furtherance of the investigation fall 2 squarely within this exemption” (emphasis added) ). 3

{1 6 } Instead of relying on the description in Newsome , Cox , and Hall , regarding 4 the documents the Legislature intended to protect, Henry turns to t he distinction this 5
Court draws in Cox between a citizen’s complaint about the conduct of a law 6
enforcement officer , which Cox holds is not exempt from inspection, and a 7 disciplinary report pre pared by the officer’s employer , which Cox holds is exempt 8
under Section 14

- 2

- 1(C)

. See Cox , 2010

- NMCA

- 096, ¶ 24. Henry claims that the 9 citizen complaint is not exempt under IPRA because it is a factual matter “ related to 10

an officer’s conduct while performing his duties as a public official [ , ] ” rather than a 11

“matter [ of opinion] related to the officer’s role as an employee

. ” 12

{1 7 } H enry misconstrues the basis for the distinction made in Cox

. Th is Court 13 distinguishes citizen complaints from a disciplinary report prepared by an employer 14 based on the purpose of the exemption: to protect the confidentiality of the 15 employer / employee relationship by prohibiting d isclosure of “letters or memoranda” 16

tha t are “generated by an employer or employee in support of the working 17 relationship between them.” Id. ¶ 22. In other words, a “ memorand [um] that might 18 contain [agency] opinions (in its capacity as the officer’s employer)” is exempt from 1910 disclosure. Id. ¶ 24. A citizen complaint, even one that may ultimately result in 1 disciplinary action , is not exempt. 1 2

II
. Section 14

- 2

- 9(A) Does Not Require the Custodian of Records to Separate 3 Fact From Opinion; a Disciplinary Report Is a Memorandum Exempt in 4 Its Entirety 5

{1 8 } Henry ’s next argument relies on IPRA Section 14

- 2

- 9(A)

. Henry claim s that , 6
even if Section 14

- 2

- 1(C) applies to “letters or memoranda” in their entirety, Section 7

14

- 2

- 9(A) requires the Board to separate “matters of fact” from “matters of opinion , ” 8 and produce the matters of fact for inspection. We are not persuaded that Section 14

- 9

2

- 9(A) provide s an alternative basis to require the custodian of records to separat e 10 fact from opinion. 11

{19 } Section 14

- 2

- 9(A) states , in relevant part: 12 Requested public records containing information that is exempt and 13 nonexempt from disclosure shall be separated by the custodian prior to 14 inspection, and the nonexempt information shall be made available for 15 inspection. 16

W e do not read this statutory lang uage in isolation from the language of the 17 exemptions found in the same statute , a s Henry suggests we should. In construing 18 statutory language, “ [ w ] e r ead [a] statute as a whole, construing each section or part 19 in connection with every other part or section so as to produce a harmonious whole

. ” 20

1 In this case, the documents analogous to the citizen complaint in Cox are Henry’s complaint to the OSA and the OSA report, neither of which were prepared by Whetham’s employer as part of an employment relationship. Henry was not denied either a copy of her own complaint or the OSA report.11 State v. Muller , 2022

- NMCA

- 024, ¶ 13, 508 P.3d 960 (alteration, internal quotation 1 marks, and citation omitted). Applying this principle, w e will not construe Section 2

14

- 2

- 9(A) to conflict with the intent expre ssed by our Legislature as to the scope of 3
each of the exemptions

. Where, as is the case here, t here is a construction of Section 4

14

- 2

- 9(A) consistent with the Legislature’s intent to exempt from disclosure the 5 entirety of a document regarding disciplin ary infractions prepared by an employer , 6 we adopt that construction. 7

{20 } Section 14

- 2

- 9(A), b y its plain language, requires an agency’s custodian of 8 records to separate exempt from nonexempt records when responding to an IPRA 9
request

. See § 14

- 2

- 9(A)

. The section does not define or describe the documents or 10 information that is exempt, leaving that to Section 14

- 2

- 1. Whe n an exemption 11 applies to a document as a whole, as Section 14

- 2

- 1(C) does, Section 14

- 2

- 9(A) 12 requires the custodian of records to separ ate exempt documents from nonexempt 13
documents. When an exemption applies only to certain portions of a document or 14 certain types of information within a document , then separating the exempt from 15
nonexempt material demands redaction of the exempt material. See Jones v. City of 16 Albuquerque Police Dep’ t , 2020

- NMSC

- 013, ¶ 39, 470 P.3d 252 (considering 17
Section 14

- 2

- 1(D) together with Section 1 4

- 2

- 9(A ) , and holding that in the case of 18 law enforcement records, where the exemption specifies that only certain 19 information is exempt, the custodian of records cannot withhold req uested 2012 document s in toto but must instead separate the exempt and nonexempt information 1 prior to inspection)

. The Supreme Court explained that Section 14

- 2

- 1 (D) 2 “specifically exempts only those ‘ portions ’ of law enforcement records that meet 3
certain criteria

. ” Id. ¶ 39 n.3

. Because Section 14

- 2

- 1 (C) of IPRA describes entire 4 “letter[] or memorand [um] ” as exempt , the cus todian is required only to separate 5
exempt from nonexempt documents, and make the latter available for inspection

. 6

Th is process respects the Legislature’s exemption of the entire Whetham Report. 7

III
. The District Court Did Not Abuse Its Discretion in Quashing Henry’s 8 Subpoena and Discovery Requests and Denying In Camera Review 9

{21 } “We review a district court’ s discovery orders for an abuse of discretion.” 10 Villalobos v. Bd. of Cnty. Comm’ rs , 2014

- NMCA

- 044, ¶ 14, 322 P.3d 439. We are 11 not persuaded by Henry’s argument that the district court abused its discretion in 12 denying Henry’s IPRA request for a copy of the Whetham Report without either 13 discovery or in camera review. 14

{ 22 } H enry argues that the district court was required to allow discovery of the 15 Whetham Report or to r eview the Whetham R eport in camera to determine if the 16 document contains “matters of fact” that can be separated from “matters of opinion.” 17 Having concluded that no such separation is contemplated by either Section 14

- 2

- 18 1(C) or Sectio n 14

- 2

- 9(A) of IPRA, we agree with the district court that neither 19 discovery nor in camera inspection w as required to resolve the dispute in this case

. 20

T he facts included in the Board’s response to Henry’s request and the subsequent 2113 affidavits submitted by the Board to the district court as part of the summary 1 judgment process were undisputed. The undisputed evidence in the summary 2 judgment record established that the Whetham Report “concerns” a potential 3
di sciplinary matter against Whetham. We agree with the district court that this 4 evidence is sufficient to shield the Whetham Report from disclosure and that neither 5 discovery nor in camera inspection was necessary to the resolution of this dispute. 6

See ACLU of N.M. v. Duran , 2016

- NMCA

- 063, ¶ 45 , 392 P.3d 181 ( providing that 7

“ [ w ] here appropriate , courts should conduct an in camera review of the documents 8 at issue” when determining if documents are responsive or if privilege applies under 9

IPRA (emphasis added) (internal quotation marks and citation omitted) ). 10

{ 23 } We caution , however, that in camera inspection is not always unnecessary 11 when an agency claims a docu ment is exempt under Section 14

- 2

- 1 (C). An agency 12 may not shield documents that are not exempt from disclosure by attaching them to 13

a n exempt disciplinary report or by placing them in a disciplinary file

. Just as this 14
Court has held that a document cannot be shielded from disclosure by placing it in a 15 personnel file, see Cox , 2010

- NMCA

- 096, ¶ 21 , attaching a nonexempt document to 16 a disciplinary report or placing it in a disciplinary file does not shield the document 17
from disclosure under IPRA

. I n camera inspection may be required if an a gency 18
attempt s to shield documents without adequately identifying their content or without 19 identifying nonexempt attachments. 2014 CONCLUSION 1

{ 24 } For the reasons stated, we affirm. 2

{ 25 } IT IS SO ORDERED. 3

__________________________________ 4 JANE B. YOHALEM, Judge 5

WE CONCUR: 6

_________________________________ 7 JACQUELINE R. MEDINA , Judge 8

_________________________________ 9 GERALD E. BACA, Judge 10